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Comparative Legal Cultures of the Western World

Fall 2006 Professor Curran

What is Comparative Law?

Comparative law is legal history concerned with the relationship between systems.
Watson says it doesnt exist
o Theres no comparative branch of the law, like family or tax law - its a
technique/method
o Whenever we study foreign law, were inevitably practicing comparative law
and it illuminates our own system
o Watson says comparative law is about the nature of law
Its legal history combined with the relationship between systems, and how
the law develops
b/c almost every culture borrows law to some degree, legal systems arent
necessarily based on their people
VC says its a hybrid
While we like to think that law is universal, comparative law teaches us that it isnt
o It forces us to separate the necessary from the contingent
Comparative law is interdisciplinary
o Glendon: b/c its collaborative in nature
Language and communication barriers make collaboration difficult
Notes that Toqueville, Montesquieu and Plato write about The Stranger
in analyses of law to critique their own systems of laws
Written before freedom of expression truly allowed criticism of govt
o Rabel: b/c you must understand context, i.e. history, politics, language, etc. to
practice comparative law
Other random perspectives:
o resisting arrogance temptation to see foreign law as inferior
o James Boyd White sees law = rhetoric
Language used to express law illuminates its role in society
o Gertz says law is not the whole story it isnt capable of capturing everything,
nor should it try
o Luhmann says distinction between whats legal and illegal is central question of
law
o If laws reflect universal human needs and attributes, comparative law may be a
way to discover objectively verifiable human universalities

Functionalism emphasizes function and context when comparing legal rules,


institutions and systems
Must examine legal, economic and cultural context to understand how they function
Approach developed by Ernst Rabel and other German Jews who escaped the
Holocaust and a system that treated them as different
o therefore they use praesumptio similitudinis basic laws are all the same and
comparative law must start with this presumption
comparative law is the search for community rather than isolation
this means if comparatist doesnt find similarity in different systems, he
has failed
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Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

paradox was that functionalists viewed Naziisms persecution of The Other


as a universal human trait rather than an aberration
o Zweigert and Kutz were influenced by Rabel, believing in similarity of human
beings and laws
Presumed that any time the law allowed distinctions or differences, it led
to repression, exclusion and discrimination
For the rule of law to work, it must be objective so we look for similarity,
evidencing that an objective standard exists

Borrowing with adaptation Watson says private law of every country is borrowed,
from Rome or elsewhere, but often with mistakes
Montesquieu said b/c laws reflect the particularities of their people, the importing
state interprets borrowed laws to fit its peoples needs; Savigny agrees
Same borrowed laws may characterize different states, but theyre interpreted
differently
o We naturally assume that if we find a translation, every aspect of that
concept is the same as it is for us
Why borrow? Watson says for prestige and security allows you to learn from
what worked and didnt work for others in the past
Functionalist view of this:
o Function same statute can be interpreted in different ways in different
places
o Context you cant understand a law without understanding its context
(history, politics, system that produced it)
Impact of globalization on law
in US, when theres no precedent, courts may look to foreign court decisions
o Scalia approves of this in all but constitutional law biotech cases, e.g.
o Problem is that US judges dont understand the systems that underlie
these cases
International forum shopping Yahoo case, where French court ordered Yahoo
to withdraw racist info on web that violated French law
o Yahoo went to US courts, where it wasnt a violation; US courts
misunderstood French decision
Nation-state becomes less influential, sovereignty less absolute
Common core project
Started by Schlesinger who brought field to US
Functionalism + legal formants could predict the outcome of legal issues in
different legal cultures
o LF were Rodolfo Saccos concept all aspects of society that influence
law and are influenced by law
o Problems: question formats already implied the answers

Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

Hugo Mattei first to pursue internationalization of law in the era of globalization


through common core of European Private Law
o The Trento Project sought universal private law for EU
o Lando is drafting a uniform contract law for Europe and anyone else
All participants are asked to consider their legal formants

Law & Science


Langdell introduced case law method in US
o Through cases, one can study law scientifically and infer principles
Associating law with science gives it more prestige and legitimacy
o b/c law impacts peoples lives so seriously, they must see it as something
other than arbitrary
Schlesingers common core method seeks to solve problem that law lacks
verifiability
Evolution of Legal theories
Natural Law Universals exist in nature (come from God and human nature) and
should be reflected in law; if not, there are bad laws
Major criticism of communist societies is that their laws defied human nature
Savigny (19th cent.) positivist or natural law proponent? Fuller says not positivist
o a bad rule of law doesnt express the spirit of the people
o Law must be tailored to the spirit of the people, Volksgeist
o Could be viewed as a positivist, but more natural law-based
Positivism (19th cent) there are no universals, no higher authority to justify law
legitimacy comes from the state, whether democratic or authoritarian; gaps in law
exist
No reason for all legal systems to resemble each other
Custom must be weak in positivist theory b/c it isnt handed down from the
legislature, isnt enacted law
This term also refers to the social science of law (Auguste Comte, 19 th cent.)
o Laws are to be analyzed like natural phenomena, to be observed,
evaluated, detached from preconceived ideas
Hobbes founded legal positivism on a natural law basis
o Ultimate aim of society is peace & order, and our war-like nature frustrates
it we need a sovereign to establish peace & order, and the rules it lays
down for the settlement of disputes we shall call law
o Sovereign should follow natural reason as much as possible in seeking to
establish peace
Disobedience creates greater evil and undermines peace & order
thus, people must obey sovereign, even when commands are
unjust, unreasonable
Hobbes justifies this based on peoples consent to be governed;
later positivists echo the principle w/o justification
o Judges are agents of the sovereign

Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

It may look like they make law, citing custom and reason, but the
sovereign goes along with them and they reflect him
o Writers and professors may also help shape the law, but they dont even
qualify as agents they may influence the agents
Austin (follower of Hobbes) imperative theory of law has undergone a
change b/c govt has become more complex
o We have checks and balances rather than one absolute sovereign
now sovereign is the person/group whom society is in the habit of
obeying
del Vecchio says this depends on whether sovereign is consistent
with human reason
o positivism looks at the law that is if people disobey it, a new sovereign
has probably emerged
test distinguishing the law that is from the law that ought to be is the
sovereign for Austin
sovereign absorbs the little revolutions, characterized by
permanence & unity
if custom determines who the sovereign is, custom becomes
exactly what the sovereign allows
o some criticize Austin as ignoring the evolution of law
o inconsiderate sovereign problem one who limits his own power and
issues contradictory commands
positivists say either real power lies elsewhere (in Congress?) or
sovereign cant limit his own powers and contradict himself
o gaps in law many say no gaps exist, b/c what the sovereign doesnt
forbid he permits
theres a judicial mechanism to handle gaps in the law, so no gaps
others say natural law enters through the gaps
Von Jhering was a proponent of positivism and practical side of law
Isaiah Berlin says you cant understand people if your society is different, b/c
ideas lose their meaning across cultures
Fullers criticisms: positivism is very dangerous if laws can be bad, sovereign
can get away with everything
o biggest problem with positivism is that custom is the basis for determining
who the sovereign is, then the sovereign dictates custom
Free Law School (1906) good judges are needed to interpret the law, you cant
just rely on whats on paper
Judges bring human experience to their role and make the law
Sociological School you cant understand law without understanding sociology
World War II era, Stalinism and Naziism caused identity crisis for law (and
positivism)
o These societies were highly legalistic and used that structure to legalize
racism and other atrocities
o Hitler was more or less granted power in a legitimate way
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Fall 2006 Professor Curran

After WWII, world idealized law as the solution


o Universal Declaration of Human Rights drafted by Cassin, who believed in
triumph of civilization through law and universality of law
o Radbruck return to Natural Law; evil law isnt truly law
Dyznehaus said Radbrucks theory should have been applied to South
African apartheid cases
o Hart British positivist
the government is the law-generating institution, and what it says is law
is law ; if its evil, you dont have to obey it

Civil vs. Common Law Contracts


Canon law in Europe evolved into a larger civil law based on morality
o Pacta sunt servanda guides civil law courts hold people to their
promises, even if it seems inefficient
o Contrast to common law, which emphasizes efficiency
Volkswagen case prior to WWII, German people prepaid for Volkswagens, but
Russians took the money
o German Supreme Court later held pre-war contracts were enforceable,
meaning court had to track down thousands of buyers and get them to pay
a bit more money
o Dawson considered Volkswagen example a bizarre legal phenomenon,
unfeasible and silly
Too hard to track down all the original payors, etc.
Amazing to Dawson that scholars didnt criticize it
o Under German law, if the foundations of the contract are destroyed, then
performance is excused
Pufendorf felt that didnt happen in this case Volkswagen still
existed, it still made cars, they could track down many people
Can you ever really understand another legal culture?
Comparative law is like translation
the comparative act inevitably is a form of translation, illustrative of both the
potentials for communicating the new and the pitfalls for betraying or losing
the original in a process of transmutation, writes VC
Grossfeld claims there are no intercultural synonyms
o Translation is always approximate there are implications and
nuances that one must know the culture to perceive
o We are prejudiced, seeing things through our own eyeglasses
we need to know the entire code of the relevant culture in order
to understand its language transmission
France & Belgium have basically the same civil code, but its
interpreted differently
o Principle of equivalence by associating things that are similar,
language conveys commonality between different matters

Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

Birds & butterflies are the same in some languages b/c both fly
Westerners trust language and demand that law be closely tied to it not the
same everywhere
Derrida comparative analysis is integral to all legal analysis, but we dont
recognize this b/c:
o The West treats identity as a foundational concept and difference as
derivative
VC says difference is also a foundational concept; neither
identity nor difference can exist without the other
o Traditional categories of legal analysis obfuscate differences within
those categories
Cognitive science says we only understand by comparing
Dworkins constructive interpretation imposing purpose on an object or
practice but the purpose is the interpreters
o The Heisenberg principle you can affect what you observe by
observing
Semiotics we communicate with a system of signs that each come with
their own connotations
o Selbsbewusst translates to self conscious, but that connotates
shyness, and its the opposite in German
Cultural immersion approach (advocated by VC)
Valid examination of another legal culture requires immersion into its political,
historical, economic and linguistic contexts
o When other courts quote US decisions, they dont always consider context
behind the decisions
We should try to understand a foreign legal culture in untranslated form
Curran has 3 central concepts:
o Categorization is critical, and categories come from our experiences
Our biological capacities of perception are fixed as human beings,
and we process data based on our own community and individual
experience
These capacities both limit and enable perception
o Comparative act is such a normal part of understanding that it goes
unnoticed
o Inevitable transmutation through comparison
Animal trials are a source of mystery for us (Ewald article) why were rats tried
in France for eating & wantonly destroying crops?
o VC thinks people considered animals to be almost human and that courts
thought if they pronounced Gods will, God would make the sentence
happen
During Renaissance, when humans were exalted as above
animals, animal trials ended

Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

o By writing this, Ewald may suggest that we sometimes hold trials that
would look absurd to outsiders e.g. proclaiming school desegregation
and assuming it will automatically happen, O.J. & Michael Jackson trials
The heretics in the village werent going to have a trial at all before
being exterminated
o Legal systems can be completely different from one another (such that
they allow trials of animals)
Yet, there are still basic principles that allow us to understand these
different systems
Issues reflecting disparities between legal cultures:
Drafting CISG
When drafting CISG, terms meant different things to different countries and had
to be ironed out
o Not only differences between common and civil law, but between
industrialized and developing countries, market economies and socialist
economies, etc. had to be taken into account
o obligor/obligee solves the fact that in common law, Buyer = debtor and
Seller = creditor, while its the opposite in civil law
3 major differences between systems reflected in CISG:
o Good faith compromise on language
English said it was too narrow, civilians said too broad
In common law, its still thought to encompass efficient breach; not
in civil law
UNIDROIT provides for good faith
o Specific performance
Art. 46 allows it, but Art. 28 says a court doesnt have to order it if
its own law doesnt provide for it so forum is the key
UNIDROIT says you can require other party to perform unless you
could get performance elsewhere
o Penalty clauses
Omitted b/c it was too hot to handle
UNIDROIT allows penalties, and civil law countries are used to
them
Uniform application is a major goal of the CISG
o Art. 7(1): In the interpretation of this Convention, regard is to be had to its
international character and to the need to promote uniformity in its
application and the observance of good faith in intl trade.
o Art. 7(2): gaps should be filled by looking to general principles, or in the
absence of such principles, in conformity with law applicable by virtue of
private intl law
Big issue is what legal authority to look to for guidance Art. 7(2)
satisfies both systems
o Challenges to uniform application:

Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

Language - cases interpreting CISG are in 6 different languages,


words dont always translate the same
Oversight by a variety of different courts in different systems
Differing approaches to interpretation: Civilians look to academic
commentary and UNIDROIT, common law to cases; creating a
hybrid approach
Comparison to UCC:
o Llewellyn included civilian elements, such as good faith requirement
o It looks like a civilian code, but its been adapted to fit common law
Swiss cheese theory gaps in UCC send courts to case law
Even in areas where UCC clearly governs, courts apply it through
case law we cant escape the cases
Legality of suicide
o Globalization of law means that when a new technological or biological matter
comes up in law, courts look to other courts around the world for guidance
o Laws in Oregon, Belgium & Netherlands allow terminally ill person in terrible
pain to resort to physician-assisted suicide
o In US, we think suicide is linked to mental illness, so person wanting to die
cant be rational
o In Eastern cultures, concept is much more natural

Bases for civil law system:


Roman Law
o First jurists & lawyers emerged in 1st cent. BC; fullest development during
Classical period, 117-235
o Justinian Codes 6th cent. AD, when empire had begun to fall, Byzantine
Emperor compiled Roman law into Corpus Juris Civilis
4 parts: 1) Institutes, 2) Digest, 3) Code, 4) Novels (new)
Digest summarized what was seen as most important part of law
o Juris Consults of Rome recorded case decisions and passed them on, but
it turned into a basic code of abstract legal principles (like a Restatement)
Canon law hybrid between Christian notions & Roman law
o Primarily governed marriage and property law
o Dominated from 5th to 11th centuries
Customary thicket of Middle Ages law was the custom of each tribe; no
comprehensive system
Around 1050, Corpus Juris Civilis rediscovered with return of political order and
desire to return to antiquity
o University of Bologna had lectures on CJC
Looked to Digest b/c original texts werent preserved
Glossators interpreted and explained arcane concepts of CJC
Commentators adapted CJC to present times in 13 th century

Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

Reception incorporation of Roman private law into courts, not just academic
field
o Today, concept of systemization underlies civilian approach the CJC
gave Europe the order it sought
th
16 and 17th centuries, center of legal scholarship moved to France & Holland
o French humanists saw CJC as a historic text rather than as totally
controlling
o Dutch Natural Law theory grounded in universal law of nature
Jus commune revival of Roman law that became common law of Europe,
trumped by some local law and customs, that was displaced for codification in
18th century
o Marked by exchanges and interchanges among judges
o Never took in England, although universities taught it their own system
was too well established
o Gradually merged with local legal customs in most states
o Rise of the nation-state and codification in 19 th century marked the end of
jus commune (and of interchanges between judges)
19th century public law & law of nations developed from American, French and
English ideas about equality, democracy, separation of powers, natural rights to
life, liberty and property
Did Roman law survive or was it rediscovered?
o Some argue it continued to influence legal customs of Barbarian tribes
o Commentators represent legal transplanting they adapted Roman law,
which is why it worked
All Commentators & scholars shared Latin as a common language
th
19 Century Codes
o Both French and German combined jus commune with their own national
laws
Both grounded in 19th century liberalism autonomy, freedom of
contract, private property
Both have underscored the modern Civil Law tradition, although
French moreso it was earlier and was less technical than German
o French Civil Code of 1804, developed under Napoleon
Contained 5 separate codes: civil, penal, commercial, criminal
procedure and civil procedure
3 ideological pillars: 1) private property, 2) freedom to contract, 3)
patriarchal family
Consciously sought to break up estates of aristocracy
Emphasized masculine power moreso than later German code
Code was general, sparse and short it had stylistic beauty and
traveled well
o German Civil Code of 1896
Replaced disastrous Prussian Land Code of 1794, which tried to
foresee every possible contingency and legislate for it
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Fall 2006 Professor Curran

When Germany became unified in 1871, Roman jus commune was


appealing
Pandectists investigated Classical Roman law to adapt it,
but they believed in superiority of Roman institutions
After 20 years of research & compilation, it went into effect in
1900
Not as widely accepted as French Civil Code b/c it was so technical
20th century law reform marked by eclecticism looking to different systems for
ideas; notions of diversity and pragmatism govern
o Perhaps were experiencing a return to jus commune for this reason
o Civil code doesnt govern every aspect of law today
Personal status (i.e. family), property, obligations (through K or
conduct) are covered
Modern civil law has started to separate landlord/tenant law,
employment law, insurance, competition, agriculture
Modern French tort law is almost entirely judge-made the Code
couldnt foresee it

Constitutional Law in France & Germany


German Constitution of 1949 basic law of transition until reunification (but plan
to draft new one was rejected)
o Pushed by the Allies; between loose federalism of France and tight
centralization of Germany
Although Germany has a federalist system, federal government has
much more power than ours
o Bill of Rights is item # 1, judicial review is codified
Commitment to democratic principles and human dignity cant be
amendable
Everyone entitled to basic necessities, food & shelter, life sentences
reviewable every 15 years, increasing social & economic rights
ideological drift regarding human rights reflected:
Peep shows were forbidden at one point for violating womens
dignity
Art. 2(1): right to develop your personality within the confines of
the rights of others
Asylum granted to anyone persecuted for religious reasons
(later restricted due to influx of immigrants)
Bodily integrity (now means freedom from contamination)
Anyone has standing to assert constitutional rights
Right of civil obedience
o Presidency has less power and authority
Chancellor has more, can be brought down if majority of Cabinet
agrees on successor
French Constitution of 1958 (No. 12)
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Fall 2006 Professor Curran

o President has the most power, legislature makes specific laws only
Hybrid of presidential and parliamentary system response to
parliamentary chaos and instability of earlier governments
President elected by universal suffrage in 1962 opening door to
gridlock, or cohabitation
President has emergency powers and can dissolve government
o rights not outlined reference to 1789 Declaration
o Where legislative and executive are powers, legislature is an authority
No pretensions of equality
De Gaulle established Const. Council with eye to strengthening
presidency if he didnt like Parliaments legislation
US perception of Constitution is akin to civilian perception of Code
German Constitution travels much better than US or French
o Modern conceptions of human rights, rather than 18 th century ideals

Judicial review in Civilian Systems (idea that courts pronounce the legitimacy of
legislation)
Parliamentary system characterized by legislative supremacy
o Accentuated by fact that executive is head of party with legislative majority
Judicial review isnt really compatible with parliamentary system
o Civilians trust the political process more than we do
US views judiciary as protector of minorities and individual rights, while
legislature is voice of the majority
Continental Europe sees it as the expression of the general will, a
natural protector of minorities
YET these societies were very homogenous when founded
o French judiciary follows the legislatures will
Judges are disliked; as unelected officials, they shouldnt have power
Originally, judges could buy or inherit positions viewed as
arbitrary and abusive of power
Robespierre spoke of a country with no judges (or at least where
judges had no power)
government by judges is a very negative term, insinuating corruption
Eventually, every system felt need for judicial review, even though it didnt fit easily
o First appeared in Austrian Constitution of 1920
Only a special constitutional court could decide on constitutionality of
legislation on referral from an authorized person
review can be a priori or a posteriori
Austria had first Constitutional Court in Europe constitution drafted by
Kelsen, who incorporated parts of US judicial review that he liked
Seen as a way of preventing dictatorship
Technically denied

Actively exercised
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Fall 2006 Professor Curran

France
England

Italy
Germany
US

Judicial review in France


o Constitutional Council has abstract and a priori review IF executive or
legislature asks
1971 it claimed power to review laws for conformity with other laws and
the Republic
No public arguments or lawyers, allocation of votes undisclosed
187 decisions concerning constitution between 1959 and 1987;
70 were nullifications
Council comprised of former legislators and Cabinet Ministers, all
appointed by President (no confirmation)
o Review is abstract, a priori
Marked contrast to US, where constitutional concerns must involve a
live, concrete controversy
VC says declaratory judgments indicate a certain amount of a
priori ruling in US
Standing often not granted to individuals, just judges and government
agencies
If a judge finds a constitutional question in his case, he refers
that question to Constitutional Council
Parliament can also refer bills to Const. Council to ensure they
arent later overruled
o The fact that its already been argued in Parliament
means Council has an opinion
o Decisions of Const. Council later viewed as part of
legislative history of resulting bill
o Council of State is the highest administrative court in France like a second
Constitutional Court
laws made by executive are subject to CoS review
Const. Council can also go to CoS for opinion if it chooses
o No one ever expects to have true judicial review in France, due to corruption
and abuse of past judiciary should be mechanical, mouth of legislature
Advent of EU law and need for French courts to determine whether
national measures violate it has expanded judicial review
o French abortion decision
Based almost entirely on text of the law both Parliamentary statute
and Constitution, as well as ECHR
Brought by the legislature; Council upholds the law
Court considers this law might violate ECHR right to life but court
says it cant hear that issue

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Fall 2006 Professor Curran

Where France has signed a treaty, intl law always trumps


domestic
It doesnt want to be seen as violating EU law, so it looks to ECJ
decisions
French courts realize and accept that theyre supposed to apply
the law that Parliament has enacted mechanically
Judicial review in Germany
o Can be brought by parties in live controversies case referred to
Constitutional court; later, original proceedings resume
Individuals can also file suits in Constitutional Court provided they have
exhausted other legal remedies
Government agencies can also run legislation by Court to see if its
okay in the abstract
o Court has 4 kinds of competences:
Determination of hierarchy of legal norms
abstract judicial review per government request
protection of federalism
separation of powers
protection of human rights majority of courts activities
o rulings can be a priori or a posteriori (in Austria, too)
a posteriori review deals with actual problems that may not have been
foreseen
o rulings binding on all courts in future (unlike other German court rulings)
o German abortion decision: stylistically resembles French decision, laying
out the text and deducing the answer
Court applies proportionality in weighing mothers right to self
determination and bodily integrity and fetus right to life
Chooses fetuss right to life as more compelling
Court says validity of punishment is whether it actually guarantees
protection of the legal value
if you punish mother who gets abortion, shell either go abroad
or go to unlicensed physicians
this scheme favors rich over poor
Therefore, abortion is decriminalized
Both majority and dissent are heavily influenced by aspects of the Nazi
era and its use of punishment, devaluation of human life, etc.
res judicata vs. erga omnes
o res judicata binds the 2 parties to the case, erga omnes binds EVERYONE
o however, in US, res judicata + stare decisis = erga omnes

THE CIVILIAN SYSTEM


A. Role of judges
Investigatory
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o Do most of the fact-finding, question witnesses


Witnesses are NOT questioned outside court
o Hire expert witnesses (these are more neutral, as theyre witnesses of the court)
Frame issues and legal theories of the case (statutory duty)
During proceedings
o Apply legislatures will dont have that much power
o Cases heard in 3-judge panels
In Germany and Italy, judge who investigates sits on panel that renders
decision
In France, one investigates and others preside
o Step in if lawyers are weak can ask for further proof, correction of
misunderstandings, amplification of allegations
o No contempt power can issue fines using in rem jurisdiction if you dont comply
with court order
Working conditions for judges were pretty bad in the past, although theyre improving
o More female judges in Germany and Europe
Problems: few checks on judges power, little accountability if judge is no good
o De novo appeal and 3-judge panels provide checks

Role of Legal Scholars


University professors (generally have PhDs in law)
o Working conditions are pretty bad no offices, low pay
Germany and Switzerland have some of the best
o Graduate students end up doing much of the teaching
o In Germany and France, its very difficult to get a professorship few law
schools, lots of qualifications are set by govt
Draft the Civil Codes when they need to be amended
Run the law reviews
Interpret court decisions by writing doctrine
o body of writing that steers future court decisions similar role as our case law
Select cases worthy of commentary because not all cases are published, scholars
ultimately determine which decisions are important
o Because cases dont serve as precedent, this isnt such an issue
In Germany and Austria, you cant access decisions at all
Civil Court Procedure
Rules come from Civil Procedure Code
Trial is last stage of a process: no counterpart to pre-trial discovery and motion
practice ; Continuous process of meetings, hearings, written communications, taking
of testimony
o Proceedings are unconcentrated, and you can always amend or introduce new
motions or theories, with 3 consequences:
Pleadings are very general

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Less pressure to arm yourself with information and arguments about every
fact that could potentially arise
Civil suits often take a long time
Stuttgart procedure parties prepare a case thoroughly, have one
preliminary meeting, then resolve everything conclusively at the
hearing
Judge can choose this method of proceeding
Evidence: No real rules of evidence - trials are much less rigid than US trials
o documents arent formally admitted into evidence
o No preponderance of evidence standard
A common error is to think that theres the same standard of proof for civil
and criminal law or that standard is much higher than ours
opinions are written in the tone of utter certainty and truth but
thats just the style, that doesnt mean there has been 66% proof
There is no written standard of proof in most systems
o France intimate conviction of judge leads to resolution
(subjective)
o Italy prevailing probability
o Germany high probability, some discuss concept of
greater than 50% in Germany & Sweden, but its not codified
o Spain commonsense rules of reason, average experience
of the world
In France & Italy rules only limit use of oral evidence to prove contracts,
similar to parol evidence rule
Jurors
o France: usually no lay assessors, only judges
In juvenile court, intl espionage, terrorism, no juries only 7-judge panels
Greater importance of writing
o Dossier is the core of the process
o In Germany, written evidence allows shortcuts in procedure
Costs: Loser generally pays winners fees and court costs
o Discourages frivolous claims
o Court costs vary none in France, in Germany & Austria theyre determined by
basic units, depending on number of stages of proceedings; amount relates to
amount at stake
Legal aid available you generally have to be really poor to get it
this has now been extended in Germany to legal advice on matters
of civil, criminal, administrative and constitutional law (not labor, b/c
unions do that)
legal insurance common in Germany
o No contingency fees considered unethical, because lawyer shouldnt have a
financial stake in the outcome; shes an officer of the court
Problems: trials are loooooonnng

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Civil Trials in Continental Europe

Civil Trials in US

Its a process series of meetings


Judge runs the show

One concentrated event

Judge decides result

Judge technically supervises, but parties steer


Jury or judge decides result

No rules of evidence anything relevant comes


in, as were searching for truth

Elaborate, evolved laws of evidence (partially


b/c we dont trust jurys judgment)

Appeals
In some countries, its a de novo review of both law and fact, and new evidence can
be presented
You dont trust the original judge 100%, lack of deference
France: cassation comes from to break French court can nullify what a lower
court has done if lower judges misapplied law or overstepped jurisdiction
o If it disagrees, it remands the entire case to be tried again
o Court of remand doesnt have to follow appeals courts lead
o If it doesnt, appeals court sits in plenary session, and if they remand again, lower
court is now obligated to follow
o Felt obligated to establish intermediate appeals court by ECHR fundamental
human right to appeal conviction
Italy: similar to French cassation, but lower court must follow higher court
Germany has revision on questions of law
o Higher court can either reverse and remand or modify opinion and enter final
judgment
o de novo appeal in minor criminal cases, but not serious offenses, which are given
more time, more professional attention
o No intermediate appellate court in Germany
Criminal proceedings
Parties
Prosecutors have little pressure to get convictions theyre not accountable to
community
o More closely tied to judges, and position is often a step to becoming a judge
Prosecution is the standing magistrate, while presiding judges are
sitting magistrates
o No role in politics, dont get appointed for their views
o Come after Defendants rather than before
Defendants virtually always testify and testify first
o In France, defense attorneys have very little respect theyre not equal to
Prosecutor and are seen as undermining Prosecutor
o Advocate wasnt originally considered an agent of the client
Supposed to be independently wealthy, but client could make a gift
Defendant receives an honorarium today
Partial contingency fees are now permitted and lawyers can sue clients
if they refuse to pay
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o No law partnerships were allowed until the 1950s all had to be sole
practitioners
Victim is present and can be a party in some countries
o France: anyone who has been harmed can be a party to civil or criminal suit
They hire a lawyer, can make arguments, have access to dossier, can
call witnesses
o Germany: can join the suit, but if they want personal damages, must sue
independently later
Jury any citizen over 18 can be a juror, because judges guide them through
process, so no voir dire
o Jury originated in 16th century England, thinking D should be judged by
someone who spoke their own language
Pre-trial
o many countries now interrogate suspect in attorneys presence and expressly
provide a right to remain silent
o defense counsel has absolute and unlimited right to inspect dossier
even English courts follow this now
argument that D will abuse this privilege by fabricating defense is fairly
unfounded
D has already stated his version of the facts on record
Previous testimony of witnesses can be read at trial if they refuse to
speak, contradict themselves, or disappear
if charges are brought, dossier goes to 3-judge panel which determines whether
theres reasonable cause to proceed with trial
o defense counsel can submit arguments or ask for more evidence
Procedure
o trial usually consists of mixed bench 3 professional judges and lay assessors
as a single body, they determine issues of law and fact, then guilt and
sentence (in most countries, need not be unanimous)
usually only the Presiding Justice is familiar with the dossier so only
evidence received in open court can be considered in reaching a decision
Judge does the questioning, and while lawyers can ask additional questions after
judge is finished, they rarely do seen as impolite, improper
No plea bargaining thwarts the search for truth; undermines justice because
parties are assuming judges role
o In Germany its becoming more common, especially with white collar
crime and complex cases
o In France with 2004 reform its permitted for only minor crimes
Judge participates, lots of restrictions
Thought is that it encourages innocent to bargain to avoid the
chance of getting a harsh sentence
Dossier is the core of the case, writing is somewhat sacred
o French principle of orality some things MUST be done orally, because
writing favors the educated
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No bifurcation of trial and sentencing


o We dont allow prior convictions when considering guilt, while civil law
does
o Professional judges will guide lay assessors and tell them not to pay too
much attention to this
No cross-examination
o by the time we get to trial, the dossier has been put together and most of
the factual issues have already been found
o Theres no point in D changing his story
o French law now provides for cross-examination, but its not really done
Defendants rights
Right to physical integrity no physical abuse to make suspect talk
Most systems give accused right to counsel from beginning
Right to remain silent although this often hurts D
Version of Miranda rights are given in Europe, but theyre usually waived
Part of French reform in 2000, although it was unpopular it
discourages D from telling the truth
No perjury or swearing in of D we want D to feel free to tell the truth
No pro se representation system doesnt trust/allow people to protect
themselves; you also dont reach the truth that way
o Value of uniformity and equality all prosecutors and judges have been
trained the same way
Rarely is D imprisoned before conviction unless theres a serious chance of
escape in that case, no bail
suspect receives a summons to court
o in Germany, arrest is justified if all 3 are present:
strong reasons for believing suspect committed crime
evidence shows specific, rational ground for pre-trial detention, like risk
of flight or of tampering with evidence
detention must meet proportionality requirement
Evidence
No exclusionary rules if judge decides its relevant to guilt issue, it comes in as
evidence
o Hearsay is admitted, even though it wont be accorded great weight
o Respect for Ds privacy is very strong
DNA evidence if statute says its permissible, judge can use it
Concepts of guilt
Theres a false idea that continental Europe has a presumption of guilt
o Declaration of the Rights of Man establishes presumption of innocence in
1789
o 2000 reforms in France affirmed this concept, because even French lawyers
believed there was a presumption of guilt
Less Ds put in preventive detention after this

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o 92% of all Defendants are convicted in France (80% in US)


a case doesnt get to trial unless theres substantial evidence trial is
the last stage in the entire process
Punishment
prison terms are much shorter in Europe, no capital punishment
o focus is on rehabilitation and education although in France, prison
conditions are pretty bad
view of US system is that a rich defendant can buy an acquittal
o US attorney counters that the state has so many resources that hiring a fancy
defense lawyer evens the playing ground
o At the same time, prosecution is spread thin and is handicapped by rules of
evidence excluding proof
Verdicts
Weighted majority determines the verdict, but you never know what the number
was
o In the US, its guilty or not guilty with no reasoning behind it
o state jury verdicts dont have to be unanimous, federal jury verdicts do
When jury is 6-person, unanimity is required to convict
In continental Europe, a weighted majority determines the verdict, but
you never know what the number was
No official court transcripts in France but there are elaborate transcripts
prepared by private stenographers
o Official court reporters in Germany
Appeals
Both sides can appeal
o Prosecutor can even appeal if D is convicted if she thinks D is too indigent,
if she thinks sentence is too harsh, too lenient
o We wouldnt appeal acquittal for fear of double jeopardy but they view it as
all one process, so D can be retried without violating his rights
Double jeopardy rule applies after final appeal
Costs: Loser pays, even in criminal cases
French Dutroix cases involved wrongful convictions sought to remedy that
through change in laws
o No detention without conviction
o Punishment for judge misconduct you cant sit alone as a judge for 5 years
o Greater possibilities for appeal where D had a single judge and alleges
misconduct

Schlesinger critique of US system


US system presupposes that legal rules are stronger than logic
o Logic says we can make a permissible inference from Ds silence, but US rules
say no
US rules that are truth-defeating in criminal procedures should be rejected if:
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o The other value that overcomes the value of truth is explicit


o Truth-defeating rule truly promotes the other value in light of experience
o Other value is so strong that it justifies suppression of truth
punitive damages reflects perception that we combine the criminal with the civil,
punishing in a case that has a lower standard of proof

Italian Criminal Justice system


Reformed in 1988 in pursuit of 2 goals:
o To reconstruct Italian criminal procedure along (US-inspired) adversarial lines b/c
defendants rights werent thought to be sufficiently protected
o To establish more efficient procedures to cope with judicial overload
Adversarial model shifts the burden of fact-finding to attorneys
Original system:
o Phase I inquisitorial
either prosecutor or investigating magistrate collects evidence both for and
against accused
Procedure was written and largely secret, although reforms in 1960s and
70s allowed D to participate more
o Phase II accusatorial
pre-trial inquiry and trial, characterized by openness and orality
trial judge had already been given dossier and likely formed an opinion
judge ran the show, questioning D first
criticized as a repetition and confirmation of what took place in Phase I
o Public felt this was very slow and unable to protect Ds right to fair trial
o Italy has always had a unitary system, with one unit of adjudication
judges & lay assessors form one unit
guilt and sentencing are also one unit
Big differences:
prosecutor is now a party, while judge becomes more passive
judge doesnt know dossier prior to trial
severe limitations on use of prior statements at trial now mainly for credibility
New quasi-adversarial model
based on US system, which was thought to protect individual rights
Initial stages:
o Public prosecutor receives a complaint, registers it and must complete
investigation in 6 months (or get extension making it up to 2 years)
Preliminary investigation the same as pre-1988 version
Evidence obtained after investigation cant be admitted
If theres not enough evidence to lead to conviction, can ask judge for
dismissal
Prosecution is supposed to be compulsory but in practice,
Prosecutor decides

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o Office has been removed from Ministry of Justice, meaning


theres no accountability for Prosecutors choices
o Yet trial judge can override Prosecutor and go forward even
if Prosecutor doesnt want to (but rarely does?)
If there is enough, makes formal request that person be committed for trial
Criticism: evidence no longer collected in an impartial, truth-seeking way,
b/c prosecutor is partisan
only collects evidence favoring D to see if case is strong enough to
bring him to trial
Once that decision is made, no need to look for evidence favoring
D
o Judge can supervise parties during investigation, but doesnt actively participate
Can preserve special evidence which may not be available at trial
Preliminary hearing judge evaluates evidence, decides if more needs to be
collected or if theres enough for trial
o D can add evidence in his favor
o Alternative options can be chosen like a plea bargain
Trial characterized by 3 principles:
o Immediacy evidence presented to judge in court rather than in a file to avoid
prejudice
o Orality with few exceptions, previous statements should not be read in court
o Temporal concentration trial should be only one day
o Procedure: Each party presents his own case and calls his own witnesses, P
first and then D
D can choose not to take the stand and this shouldnt be held against him
Victim can be co-plaintiff with Prosecutor and pursue civil remedies
Cross-examination occurs
Character evidence about D prohibited; hearsay prohibited unless parties
agree otherwise
D still isnt under oath and can make spontaneous statements at
any point during trial
Judges are accompanied by lay assessors in very serious cases
o Differences from normal adversary procedure:
Prior witness statements can be read at trial if all parties agree to it
Statements only read outside of court have lower probative value
judge can ask for original proof
Judge can raise new issues and evidence
Expert witnesses are officially appointed and can be examined ex officio
Judge can examine proof sua sponte
o Non-bifurcated trial both guilt and sentencing are decided in one
Evidence differs from US rules in 2 ways
o Exclusionary rule trier of fact shouldnt consider evidence of prior convictions in
determining guilt or innocence

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No exclusion of illegally-seized evidence for the purpose of deterring


police misconduct
o Parties must honor the rules of evidence and not try to admit anything that other
party doesnt object to
Objections are irrelevant, and your failure to object wont harm your
chances to appeal evidence improperly admitted
Other procedures that aim for efficiency:
o When theres lots of evidence, preliminary hearing can be skipped
o Alternatives to trial:
Sentencing by parties request a type of plea-bargaining that only
involves the sentence, not the charges
Proceedings by penal decree parties agree D will pay a fine only
Summary proceedings like a movement for summary judgment on the
record, and D gets a 1/3 reduction in sentence
Occurs at preliminary hearing
Criticisms
Biggest criticism is that the model didnt take only some features of the
adversarial model stuck, and when divorced from their context, they mean little
o New model doesnt protect Ds rights any more than first; author thinks D is in
a worse situation
o VC thinks it may need more time and lawyers need experienced professionals
to train them how to practice in this system
Rather than adapting to the new system, back-tracking occurs
o Judges have expanded their role, falling back on their old habits and old
notions about truth-seeking
o Grande suggests a bifurcated adjudicating body would curb judicial activism
Although prosecutor has now become a party, its not an equal party with defense
o Prosecutors and judges are considered colleagues and members of same
group
Prosecutor has far greater access to judge than does defense; judge
trusts prosecutor
o Prosecutors still have advantage in collecting evidence; defense has no
greater ability than before
Prosecutor can threaten to prosecute anyone who doesnt give info,
but defense attorney cant
D is often detained, limiting his ability to gather exculpatory evidence
Prosecutor can make searches, seizures, intercept communications,
while defense cant
System originally limited probative value of pre-trial activities but Constitutional
Court decided that often dossier evidence can be admitted into trial
o hard to abandon the notion that the truth cannot emerge without unlimited
probative evidence
o adversarial value for procedure as the method of safeguarding fairness hasnt
taken root

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o inequity between prosecutor and defense perpetuated when all evidence is


allowed in at trial
pre-trial statements can come in, affecting Ds decision to remain silent
prosecutorial discretion office is all-powerful in making determinations of
whether to prosecute

Sources of Law in Civil Systems


Primary sources: 1) Enacted law; 2) Custom; 3) General Principles
Constitution above all; then legal rules adopted by legislature, executive,
administrative agency or popular referendum
Codes
o The great codes (French & German) reflect the period of reason and science if
you base system on reason you have order
US Constitution may be comparable to civil codes.
o method of codification characterized by several tenets:
Law shall be written
Laws in the code must be systemized
Laws in the Code should be dealt with in a single fabric
Code should be written by experts
o Advantages to codes:
Creates order from a mass of legal concepts, presenting the law as
homogenous
Civilian system values certainty and predictability in the law; this
can cure lifes uncertainties
codes meaning becomes more concrete as more commentators
write about it and judges decide on it
In every single case the judge can do whatever he wants, but in
order to treat everyone equally, they try to do the same thing over
time idea that jurisprudence becomes constant
o In common law, stare decisis provides certainty
Process of codification requires that every type of law be taken into
account, including foreign laws
All the law is united in one place or book
b/c of the commentary, this isnt exactly true
Average man can read and know the law professional advice
unnecessary
Supposedly written clearly and simply; idea of egalitarianism
Legal practitioners have an authorized framework within which to conduct
their work
o Disadvantages:
The idea of capturing everything in one volume isnt realistic
Must be flexible, b/c you cant cover everything
Can be either too particular and detailed or too vague
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Code can be trapped in a particular time frame


Some argue core social values are always the same
However, the role of women has changed, individualism has grown
These changes have been reflected in judges interpretations
Sometimes judges decline to apply one provision and apply another
to achieve a more just result
Codifiers havent come up with a good way to keep it up to date
In principle you can amend the codes
b/c no stare decisis, elastic concepts can theoretically change with
the times
Commentators also critique cases as not doing the right thing
where society is changing
Codification vs. Common law
In US, common law draws on experience and empirical observation
o Holmes said The life of law is not logic, but experience.
Hahlo and Ernst Rabel: codes can be nearly identical in two countries, but the
law can develop very differently
o Hahlo says a code provides a general legal framework, but commentary is
needed to really understand it common law isnt that complicated
o In reality, civil law system is very logical and attorneys do rely on code and
logic and not commentary
o Hahlo: common law works more efficiently, based on flexibility of system of
stare decisis though judges are bound by precedent, they can
distinguish cases to allow law to develop
Custom (jus commune local custom)
o Outside of code unless it is codified
o In Spain and Latin American countries, has considerable weight
o In France and other countries, used to supplement written law, but cant trump
the code
General Principles basic concepts of justice or legal principles that supplement
gaps in code; spirit of the code and the legal culture that shaped it
o Much more common in civil law systems (ICJ statute refers to this, European
Convention on Human Rights Article 7), as civil codes are more vague
o Austrian, Spanish, Italian and Swiss codes direct judges to use general
principles to fill gaps in law
Swiss Code Article 1 says when faced with gaps, judges should act as
legislators but judges almost never use Article 1 in opinions
They act creatively, using it implicitly to satisfy civilian perception that
judges shouldnt make law
o France: courts dont traditionally look to general principles; consistent with
mistrust of judges
o Germany: judges are entrusted with looking to these principles to aid them

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Hedemans Flight into General Principles warned that judges would


take over by determining everything by general principles, but public
wasnt too concerned
Write opinions similar to American style of outlining the facts and the
process of reaching their decision
o good morals provisions
o Helps resolve tension between wanting all law to be captured in writing and
the fact that its virtually impossible to do that
By following spirit of the code, youre still in accord w/ Code itself
o Radbruchs formula if enacted law defies Natural Law, it shouldnt be
applied
German court followed Radbruchs formula to reduce pension of East
German officials who shot people for crossing the border
Radbruch wanted judges to use it to be courageous, even to apply
laws that might be viewed as retroactive
Nuremberg trials were ultimate forum for Radbruchs formula
US case against Canada argued Radbruchs formula in Chinese Head
Tax case
Curran believes principles of equity built in to common law give our
judges that type of discretion
General clauses give judges leeway to interpret and apply the law
o French and German codes provide that transactions offending good morals
are void; you must perform obligations in good faith

Secondary sources: Authorities


Case law principles in codes are often seen as too general and in need of
formulation by jurisprudence; but no stare decisis
o Important because it reflects the right way of solving problems
o Judges are deeply committed to uniform application of the law
Lots of informal consultation among judges before making decisions to
reach this aim
o When case law is well-established and consistent, it becomes authority
o Biggest argument undermining influence of case law is that at least in France,
cases arent directly cited in judgments, so you dont know if or how they
influence judges
Doctrine legal commentary by scholars
o Before cases were published, this gave lawyers access to cases that were
subject of commentary
Even now that cases are available, scholarly interpretation of the case is
seen as more important than the case itself explains the case and its
significance
Doctrine is one set of authorities filtered and pre-selected by another
o Judges arent obligated to follow it discretion in whether and what to follow

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Factors influencing them are reputation of author and level of agreement


among commentators
German judges traditionally sent confusing cases to scholars to obtain
their opinion on how to resolve not so much anymore
In France, official advisors give judges their opinions on how to resolve
cases
Scholarly commentary is most key when issue is unresolved, uncertain
Mattei is critical of US legal scholarship in the EU because US legal scholars
dont consider ethics the same way
o US legal scholars dont have the same role as civilian scholars they only
make suggestions that dont carry much weight
Also, judges in US are very careful to distinguish between holding and
dictum

Interpretation of the Law in Civil Systems


When does judicial interpretation (rather than simple application) occur?
o To explain language of textual law
o When terms are ambiguous or mutually inconsistent
o When textual law has gaps
o When result would be absurd
Grammatical interpretation first rule is interpretation stops when a text is clear
(interpretatio cessat in claris)
o Doesnt apply to general clauses
o Exception is when absurdity would result
o This is seen as the crucial first step in civil law, b/c text always governs in
US, there are fewer statutes (BUT our textual law is growing)
Logical interpretation
o Reasoning a contrario if text states one thing, it negates the contrary
o Inclusio unius exclusio
o Looking to other positive law
Exegetical look to legislative intent to fulfill its purpose
o Studying legislative history, preparatory works, ministrys responses to
parliaments questions
o Geny and Saleilles didnt like this it traps the law in time, it looks to
subjective intent
But when old statutes are involved, judges look to social objectives of
provision rather than the ancient purpose
Teleological French Court of Cassation uses this only where plain meaning would
be absurd
French approach
Article 5 of Civil Code says Judges are forbidden to pronounce by way of general
and regulatory disposition on the cases submitted to them
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o BUT, Article 4 says a judge cant refuse to decide a case b/c the law is
unclear, silent or incomplete
o French legal community never accepted the idea that there are gaps in law
that judge must fill inconsistent with judges role as applying law that the
legislature makes
As a result, even though judges actually create law through
interpretation sometimes, they cant acknowledge it
Some scholars support this role for judges
o Saleilles said judges should look beyond the code, through the code
Judges who interpret actively describe their method as looking
through rather than beyond the code
o Genys libre recherche scientifique when text is unclear or silent, judge
should be free to consult whatever materials are available to resolve issue:
case law, custom, writing, social and economic context
Both emphasized that good judges were needed to do this, in contrast
to French view that the best and the brightest dont become judges
Judicial opinions:
o Court of Cassation tried to follow Codes restrictions by writing cryptic
opinions that recited legal provisions, then made it look like the decision
followed logically
o In 1971 commission set up to reform decision-writing, chaired by Touffait
Argued that litigants rarely understood the bases for decisions why
cases came out the way they did
Classical method was too obscure judges should write in simple,
clear language and explain the facts and their reasoning
Traditional view was that as long as the result was consistent
with other jurisprudence and law, no need to explain it
Criticized court from divorcing law and reality
Clear, simple language seen as consistent with the Code
Resistance to a more US-influenced method cited US judges
propensity to ramble and write huge, long opinions
Also suggested that dissenting and concurring opinions be written;
judges feared loss of judicial independence and respect for the courts
opinion
Theres always been political pressure on judges in France, and
revealing what judges decide might increase this
Goals of interpreting: to give effect to 1) the Codes words and 2) the rules purpose
o No strict canons of interpretation; no hierarchy of approaches
o Methods of interpreting:
Grammatical
Preparatory texts
Logical
Teleological
exegetical

German approach (Brugger)


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Judicial interpretation has become widely accepted in Germany as open


development of the law
Jhering (turn of 20th century)
Free Law School Kantorowicz, Ehrlich
o Influenced Geny, saying social and economic context should be taken into
account when interpreting law
Savigny established classical method of interpretation in 1840:
o Textual/grammatical interpretation
o Structural/contextual interpretation
o Historical interpretation
o Teleological interpretation
From todays perspective, what should the outcome be? Consistent
with Free Law School
Is this consistent with civilian outlook? Yes, b/c it enhances uniformity
(judges want to solve problems of people before them) and is in
keeping with the flexibility inherent in the code
Opposition says the law means nothing if you can change it
Constitutional interpretation
o Prevailing view is that Constitution is more political, open-ended and
incomplete than laws
o Actualization rather than construe Constitution, results must be creatively
determined in conformity with constitution
o Konrad Hesses five points of reference for Constitutional interpretation:
Interpretations must support unity of Constitution
Use practical concordance to harmonize conflicting provisions
Respect separation of powers
Interpretations must aim for social & political cohesion as well as a
resolution for the parties
Normative force of the Constitution each interpretation should
attempt to optimize all these elements
o These are widely used by scholars and judges, but its not wrong to use the
same methods of interpretation for both laws and Constitution
Lots of support for using all methods of interpretation, keeping in mind:
o Each interpretation must conform to grammatical analysis
o Objective, textual and teleological methods preferable to subjective historical
method
Once a law is passed, its not limited to what those who passed it
thought it governs future situations as well
Legal coherence all provisions of the law should form a bond of unity, and judges
should read the law as a rational continuum
Ethical coherence/legitimacy social and political values should also be interpreted
in legal provisions

Problems with judicial legitimacy in Germany


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Famous 3 German code general clauses could be described as roving search


lights, supplied with beams that could penetrate anywhere in private law
o Art. 138 transactions that offend good morals are good
o Art. 142 good faith required in commercial transactions
o Art. 826 reparation required where one intentionally injures by offending
good morals
By including these clauses, Code drafters acknowledged that Code was incomplete
and had to be supplemented by sources outside code, especially judges
o Others say code is complete answer is always within the Code, just through
interpretation of general clauses
o Dawson believes this gave German judges a license to proclaim what they
saw as the correct moral outcome of a case, especially in the twenty years
after the Code came out (in 1900)
The abstractions removed the incentives for close and careful
reasoning
in that short interlude the German judiciary did what it could, and at
that with considerable success, to undermine the power of a
democratic government to protect itself against implacable enemies
that were determined to destroy it and very soon succeeded.
Law-making in that period was transferred from the legislature to the
courts
While some in US law protest similar requirement of conscience in UCC, this is
consistent with common law
o Problems at one point with common law when principles were seen as too
rigid to expand to new needs and developing moral values
o Merging of common law and equity makes this necessary
John Dawson argues judiciary has allocated itself a great amount of power in
Germany, putting itself at the intersection between the legal order and the human
affairs that it regulates
o Judges view themselves as part of the government and everyone views the
government in a positive light in Germany theyre more willing to be creative
in interpretation
During hyperinflation, German courts changed fixed amount of prices to
alleviate injustice caused by devaluation of DM
In other cases involving economic interests and individual rights,
German judges used the general clauses to strike down economic
practices that hurt citizens
In contrast, French a franc is a franc cases held that judges cant
interfere in setting currency
o Judges have the highest credibility and contribute most when they perform
the function that is assigned to them . . . the function of applying existing law
in settling disputes

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Even though we have lots of legislation, the activities of our legislatures are still
selective areas where social interest must be protected or social purpose
advanced

Convergence & Divergence


Sources of law that originally shaped common and civil law systems have been
transformed by:
Transgovernmentalism - globalization and cooperation causes more encounters
(between judges, lawyers), producing convergence
EU more bimethodological decisions coming out of national courts
interpreting EU issues
Some say no b/c EU bar of specialists are almost the only ones who appear
in front of ECJ
Rise of statutory law in both civil and common law systems, making statutes the
primary source of laws, decreasing the power of common law
In late 19th century in both systems, statutory law exploded, regulating factory
safety, workmens compensation, contracts, commerce, public utilities
each country laid down the main lines of its legal treatment of industrial
relations
In common law system, this removed from judges areas that
traditionally depended on them
Frankfurter wrote in 1947 that almost no matters of common law
come before Supreme Court
Counterargs: new statutes are no longer codes its more
detailed, more specific, binds judiciary in a different way
common law still looks to precedent to interpret what statutes
mean, using analogical reasoning civil law doesnt pay such
attention to facts, to prior cases
o VC cites decline of precedent in common law countries
as a corollary to recognizance of individual rights
reluctance to trust the past, looking more to public policy
o Perhaps this represents the equity and law-making
functions of common law
In civilian systems, codes have declined in importance, while special
legislation has increased statutes outside framework of code
Increasing variety of legislation
In US, statutory law has been augmented by bureaucratic law revenueraising laws, social security, public assistance laws
Highly detailed and specific, giving judges little leeway
In civilian countries, ordinary legislation isnt as general or conceptually
unified as Code
More particularistic and sensitive to political and economic currents
Reform under Code was difficult, but statutes outside code can be
easily amended as circumstances change

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In both systems, increased volume of enacted law also increases necessity


for its construction, interpretation and application by courts
Decline of precedent in common law
proliferation of regulatory law and increasing number of cases dealing with
social conflict make reasoned elaboration of principle more difficult
Supreme Court decisions in recent years seem to show little effort to
build a bridge to preexisting authority
Change in nature of decision-making: some suggest US courts now
give more weight to creating individualized justice in particular cases
it is now generally accepted in civil law systems that judges do and should
take heed of prior decisions, especially when a consistent line of cases has
developed
In both systems, line between adjudication and administration has become
blurred focus on efficiency and system maintenance, having clerks do lots
of the work has caused bureaucratization of courts
Emergence of administrative law
Social services, environmental, health and safety laws have the most direct
impact on the lives of most people
Expansion of functions of state and rise of public law
Laws regulating labor, education, transportation, electricity, social assistance
to the poor abound
Great distinction between public and private law of the past is no more

Is this producing convergence?


it is probable that new and unconventional groupings of legal systems will emerge
and that a country may be said to belong to a given legal group for one purpose but
to others for other purposes
In both systems, traditional mechanisms for maintaining continuity and predictability
while providing for growth have fallen out of equilibrium
Theres an increasing understanding that law cannot be scientized, in contrast to
civilian attitude that everything can be
Increasing convergence of German and US methods
o German and US courts have taken similar approaches to resolving disputes
about form contracts, but German courts have had greater success
Theyve looked to general clauses to achieve a fair result, where US
has hesitated
o There is increasing convergence in the way German and US courts apply
case law
Differences still include:
Publications of dissenting opinions in US
Americans show more disrespect for judges and criticize them
more severely
Both systems distinguish between obiter dicta and necessary grounds
o In past 50 years, German courts have become more active in making law
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Legal scholarship has receded to a less prominent role


There is a boldness and wealth of judicial innovation in Germany in
the last 50 years
o Perhaps one reason German judges can be trusted more in making law is
that their legislation applies nationwide, and they guide each other
We have different laws in all 50 states and an abundance of legal
periodicals and treatises
Trade and Human Rights are big movers of universalization in law
o Human rights have tended to be more rooted in the national law
o International arbitration has become increasingly popular
Way civilian and common lawyers are educated makes convergence difficult
o Civilian students are provided with systematic overview and framework
Kept at a distance from facts and specifics
Learn the grammar of law network of interrelated concepts, broad
principles and classificatory ideas
o Common law student is taught to mistrust generalizations and focus on the
facts and specifics
o Civilian lawyers have told Viv that civil law education does NOT encourage
innovation, and innovation is needed in globalizing legal world

Public vs. Private Law in Civilian System


Distinction between private and public law is key to civilian system; originated in
Roman law
o In 19th century, courts could only hear private law claims public law was the
sovereigns domain
o Even today, different courts for private and public law
Frances separation of powers led to separate courts for public law
Germany has separate administrative courts
Traditional notions of the distinctions:
o Public law constitutional, administrative and criminal
o Private law civil, commercial
o Mixed labor law, social security, some other new areas
Constitutional law is seen as something in itself, like political science
o Judicial review of constitutionality of acts is fairly recent
Public law today mostly administrative; even criminal law is considered part of
private domain
o Administrative law norms that regulate organization, functions, interrelations
of public authorities and between them and citizens; tax law
Largely uncodified based on case law and scattered statutes
Case law is bigger in France, while in Germany and Austria, enacted
law is more important
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Not really an area of convergence with common law b/c the rule of the
case is used rather than the facts
Private law commercial, civil, family, property law
o Separate commercial code, with basis for contracts in civil code
Switzerland has no commercial code
Commercial law also involves consumer law (which is tied to public
law)
Theres an idea that the law of contracts is common in Europe, but its
controversial
o Civil law includes questions of civil status, domicile, voting
o Property law based on distinction between movable and immovable property
Rights are seen as diminished; US is last bastion of right to property
In civil law systems, no concepts of future interests or equitable
ownership
Leases are part of contract law
Once a will is notarized, it cant be challenged
In US you can disinherit children but not spouse in civilian
countries, its the opposite
Now in France some economic obligation toward spouses is
recognized
Legitimacy was a major aspect of inheritance law illegitimate
children werent entitled to anything until recently
o Crimes are still considered private law; constitutional is separate
While result is usually the same depending on whether subject is classified as
private or public law, substantive rules might be different

Law of European Community


Background
Idea of unifying Europe may have begun with Napoleon spreading the code
o Jean Monnet was a key player in EU sought to unify France and
Germany economically so that war was impossible in the future
Two different strains: fundamental principles are similar, but national differences
are important
Democratic deficit: biggest criticism has been lack of transparency
o Most EU officials are appointed rather than elected, and elected
Parliament doesnt have much power
b/c MS governments are elected democratically, maybe this isnt
such a problem
Many in European Parliament lost national elections viewed as
losers
In Italy, you can serve simultaneously in Italian and EU
Parliaments
Low voter turnout (25% in new states, 45% in core states)

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Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

Center right group is most powerful, Social Democratic party


next
o Constitutional Treaty was thought to solve this democratic deficit by
establishing greater accountability
No Constitution originally b/c all MS had democratic set-ups and
their legitimacy was transferred to EU
Legal personality of EU was also unclear
o European benchmarks of democracy and how they relate to EU
Accountability of executive to legislature (Parliament can fire
Commission)
Rule of law standard to which all authorities are held
ECJ has constitutional review
Transparency in governance
Equal treatment and welfare
Greatest challenges:
o Expanding borders of EU, coupled with free movement of people within
those borders (Turkeys accession)
Barroso says EU must resolve issue of Constitution before further
enlargement (Croatia, Turkey) can occur
20 official languages expressing yourself in your own language is
a fundamental right
o Continued economic growth while maintaining welfare states
Lisbon project EU should become largest knowledge-based
economy
No real consensus on how to implement this EU cant tax
Revenue comes from MS, 1% VAT and customs charges,
but more extensive taxation proposals have been shot down
o EU is currently worlds biggest trader, with 20% of worlds imports and
exports

Is EU headed toward supranational state?


Its uncertain its also been called post-national
Peculiar legal problems arise
o Accepted principle of international law is that states can amend treaties,
and some MS argue they can amend their treaties following national law
(thats how international law works)
Can it have its own seat as a member of international organizations?
o Does that mean member states lose their seats in favor of EU?
Different layers of integration have been proposed, maintaining the kernel of
Europe as the most unified how would this work legally?
Courts in the EU
aim to make law not uniform, but harmonized

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Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

o The idea of making law uniform and applying it equally to everyone is very
civilian
o At the same time, the idea of one court that makes precedents binding
others is more common law
Observing whether member states are correctly applying EU law
has more of a civilian aspect
EU Court of First Instance competition law, anti-dumping
o Court does fact-finding
o appeal possible, but NOT de novo
Advocates General taken from French administrative court system
o Lawyer-employees who act like judges in many ways
o Can ask questions, submit opinions a unique feature
In French system, they used to deliberate with judges but didnt
vote not anymore after recent ECJ decision
o Considered very influential final decision often reflects what AGs have
proposed
European Court of Justice
o Court opinions are anonymous, no dissenting opinions, written in
language of parties bringing dispute
Consistent with civilian desire to insulate judges from political
pressure
Loser pays costs
o Use of general principles: looks to international treaties of MS and
common constitutional traditions of MS from 1969 on
Examples: Human rights: Right to privacy, right of ownership,
freedom of association, freedom of religion, freedom to practice a
profession, right to form trade unions, democratic government
Other principles: proportionality, legal certainty, legitimate
expectations, equality
1977 Join Declaration of Community Institutions endorsed this
approach
Unectef v. Heylens (1987) right to a judicial remedy when one of
these rights has been violated is also fundamental
Economic rights have increasingly been recognized as fundamental

Supremacy of Community Law


Doctrine of direct effect community legal norms that are precise, clear, selfsufficient have direct effect in MS law
o Vertical effect individual can sue MS
o Horizontal effect individual can sue individual (EXCEPT w/ directives)
o This is uncivilian usually only Constitutional courts can perform judicial
review and bind the entire country

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Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

BUT it has given national courts more power if they dont approve
of national legislation, they can refer it to ECJ and stick it to the
legislature
Doctrine of supremacy any Community norm trumps national law when the
two conflict, regardless of when in time national law appears
o from 1964 on, ECJ has developed this doctrine (does not appear in
Treaties)
o national law is supreme in its own sphere of competence (jurisdiction)
but when theres doubt as to competence, ECJ decides
therefore, Community law that has direct effect is the Higher Law of the land

Judicial Review in Community


both acts of Community institutions and Member State acts are subject to judicial
review for their conformity with Community law and policy
Commission or MS can bring an action in ECJ against MS for failing to fulfill its
Treaty obligations
o Weaknesses to this approach: 1) procedure is political in nature, 2)
Commission cant monitor or be aware of all MS infractions, 3) small
violations may not be worth all the resources needed to go before the
ECJ, 4) no real enforcement only declaratory judgment
National courts and EU law
o Member States can perform judicial review in conjunction with ECJ
Like an interlocutory appeal, MS court can send an issue to ECJ,
pause proceedings, then resume once decision is made
This integrates national courts and ECJ into unitary system of
judicial review and makes it more likely that MS will adhere to ECJ
opinion
Weaknesses: 1) not all violations come before national courts, 2)
MS use delays of system to defer ruling
o ECJ rulings have erga omnes effect after it has spoken to an issue,
national courts can strike down or suspend national statutes that are
inconsistent with ECJ ruling
Similar to common law role of precedent
o Citizens can sue their govts and others in national courts when EU law
has been violated strongest monitoring of EU law has been through
individuals challenging national laws
No appeals of ECJ decisions, but there can be:
o Revisions of a decision based on info that wasnt available when decision
was rendered (10-year statute of limitations)
o Requests for interpretation national courts refer an issue to ECJ and
ask how past cases determine its outcome
ECJ performs the common law-like function of analogizing ad
distinguishing issues in line with precedent

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Comparative Legal Cultures of the Western World


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o Reconsiderations third parties who claim theyll be harmed by the


decision (2 month statute of limitations)
Applicant must prove they had no notice of proceedings and
couldnt intervene
Interaction between Member State and Community law
Monists vs. Dualists
o Greece, Luxembourg, Netherlands, Portugal, Spain, Belgium and France
have monist approaches to international law
France didnt fully accept this until 1989
o UK, Ireland, Denmark are more dualist, requiring national legislation to
transform international agreements into domestic law
o Italy and Germany resisted supremacy of Community law the most
Concern that non-amendable aspects of their constitutions were not
properly addressed in EU law (i.e. fundamental human rights)
National courts ruled that Italy & Germany reserved the right not to
follow EU law in these areas presumption created that German
law in some areas was better and would trump EU law
Maastricht decision reversed this new presumption is
that EU law trumps, but German Court reserves the right to
ignore EU law if it isnt sufficient in some areas
o ECJ through case law ruled that national legislation cant trump prior EU
commitments, thus sort of forcing all EU countries to be monist
Innovation of civil law methods the ECJ has become one of the major
sources of legal innovation in Europe not only because of its position as the
Communitys judicial institution, but also because of the strength of its
comparative methods.
o Use of case law has grown and private law expanded
1985 directive on contracts requires writing and allows consumer to
repudiate more easily formerly unheard of in civil law
By forcing MS to interpret their law as in line with Community law,
has changed national rules
Has forced national law to be more collective and universal (esp. in
regulating unions or competition policy)
Has increased use of functional and economic approaches to law
Has blurred distinction between public and private law
Berrs poles of coherence rather than maintaining
traditional divisions of private law, law is now developing
around forms of economic activity (competition, employment)
Berr believes European jurists must establish foundations of
economic law
o Institutions other than courts play the role traditionally assigned to courts

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Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

Commission issues general communications (coordinate law and


set basis on which Commission regulates) and pre-merger
approvals or denials
Mengozzi says that these tools represent aim for legal certainty and
hesitation to call Community institutions law-makers
o Public law has been the most innovated by the Community approach
Esp. regarding general principles of law
ECJ has sought to extract broad principles from comparative
analysis, finding law in the common legal tradition rather than in
specific legal systems

Common law aspects of ECJ


ECJ decisions are viewed as rules of law in MS and institutions and have erga
omnes effect
o BUT rules are decontextualized they become like Code articles, not
rooted in factual context
what we find in every country is that judges do what they know
how to do while our judges reason by analogy, their judges
reason deductively
Still, someone interprets that case to find the rule of it, like in
common law
o Civilians dont perceive ECJ as a lawmaker through case law
We have different perceptions of what case law means civilians
say ECJ interprets EU law through cases rather than using cases to
make law
Some criticize ECJ for overstepping its bounds using case law
In a request for interpretation, national courts refer an issue to the ECJ and
ask how past cases determine its outcome, making ECJ analogize and
distinguish precedent
European Human Rights System
Council of Europe formed in 1949 first supranational institutional system for
protecting and promoting human rights
first to codify and enforce a states responsibilities to its citizens
o Two purposes: promoting democracy, rule of law and human rights
o 46 Member States - All EU MS plus Albania, Andorra, Armenia,
Azerbaijan, Bosnia, Bulgaria, Croatia, Georgia, Iceland, Lichtenstein,
Macedonia, Moldova, Monaco, Norway, Romania, Russia, San Marino,
Serbia, Switzerland, Turkey, Ukraine
European Convention on Human Rights produced in 1950 (effective 1953)
o At least Nine Protocols with additional rights have been added
European Court of Human Rights supervises Convention
o Individuals have standing to sue states for personally suffering violation of
Convention right (cant sue other individuals)

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Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

Even non-citizens of MS can sue a MS if they suffered harm there


while states can choose whether or not to make themselves subject
to suit, almost all have consented to Convention provision
o Member states can also sue each other
o Preconditions to suit:
individual must exhaust all national remedies
must file within 6 months of loss in national court of last resort
o Court doesnt order states to take measures it declares violation, then
Committee of Ministers must take action
Two great novelties:
o Obligations of states to individuals can be enforced (rather than just
obligations between states)
European Social Charter, created in 1961, addressed common social and
economic goals
o Incorporated in a different instrument because of the disparities in social
and economic conditions of MS and difficulties in agreeing on standards
o Law without a sword no real enforcement mechanisms other than
political pressure or expulsion of member

Council of Europe Institutions


Body
Make-up
Elected
by
national parliaments
Parliamentary Assembly
of parties
Divided by political groups (not
national groups)

Function

Committee of Ministers
(called guardian of the Councils
fundamental values)

Euro Commission of Human


Rights

Euro Court of Human Rights


(called The Constitutional Court of

Elect judges on Court


Investigates, recommends, advises
(called on Russia to abolish death
penalty)
No legislative function

Foreign Minister of each MS,


representing governments
(46 currently)

Executive, decision-making body


Discuss national approaches to
European challenges
Formulate European responses to
these challenges (need 2/3 majority for
decisions)
Monitor state compliance (decide how
state responds to Court judgment,
issue decisions on issue w/in a state,
then demand a report from state)
Elect Commissioners

Number equal to that of


Contracting Parties to
Convention (but not all
Commissioners must be from
contracting states)

elected for 6-year renewable


terms
46 judges (one from each MS)

Receives applications from states &


individuals alleging violations of
Convention (w/in 6 months of
exhausting domestic remedies)
1) Investigates violation with parties
2) Tries to reach a friendly settlement
3) if no settlement, can refer case to court
within 3 months
Interpret & apply Convention (civilian role);
follow binding precedent (common law role)

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Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

Europe and the embryo of a


European Constitution)

Elected for 9-year renewable


terms

Hears cases referred to it by Commission,


Contracting Parties and individuals
25+ decisions per year

Developments between ECJ and ECHR


1974 Nold case ECJ holds that its human rights standard is determined by MS
traditions and ECHR
1974 Solange case of German FCC b/c EU hadnt adopted set of HR that fit
Germanys standard, it had right to review EU law for compliance with its own
standards
o 1995 Brunner case (Maastricht decision) - FCC reversed this presumption
Commission rejected claims against EU in 1995
1996 ECJ ruled that EU cant be a signatory to the Euro Convention on Human
Rights
o if it could, MS or other party could sue EU for violation and ECHR would have
final say, rather than ECJ
What if state implementing EU policy by statute violated ECHR
provision?
You could sue your own MS in ECHR, but ECHR has dismissed
these cases
o ECJ has independent jurisdiction over human rights issues
2000 EU Fundamental Rights Charter
Is convergence occurring in Europe?
A. Constructing the Chunnel
o Treaty of Canterbury set applicable law as those principles common to English
and French law
o In the absence of principles common to both, general principles of
commercial law would govern, as defined by national and intl courts
o If parties agreed, principles of equity could apply
French criticized English common-law contract drafting:
o excessive religion of contracts every word is weighed and counted, like a
religious rite
o British attempt to frame parties acts in every aspect of contract and attempt
to foresee every possible contingency
Inclusion of endless, useless and inappropriate phrases, very rigid
o From a French perspective, there was no need to duplicate every aspect of
the Code in the contract Code governs regardless of whether you put all
those provisions in
You must include enough so that court sees the basic type of contract
employed

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Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

o French lawyer later said British law is so rigid b/c of stare decisis, which is
tyranny and causes common law attorneys to engage in acrobatics to find
that something is identical
British perception of French contract drafting:
o Contract was so skimpy it wasnt valuable at all
o French didnt try to forestall or foresee future problems, meaning that in the
event of a dispute everyone would be highly vulnerable
Practice was reductionistic and failed to build on past experience
Common law contract is rooted in fact, just as common law legal system
o We incorporate wording that was interpreted in other contracts to govern
problems that have occurred beforehand
Meticulous recording of paper trail
o In civil law countries, the parties control less and the law controls more
Civil
Identify general K category from Code
Governing Civil Code principles
mandate uniform interpretation of all Ks
in same category
General language suffices
Parties intent can be explained in case
of dispute

Common
Create a document tailored to this
transaction
Contracts attentive to facts 1) that this
K will generate, and 2) of case law
where past facts had past legal
significance
Parole evidence rule will bar testimony
re: parties intent, so needs to be
expressed

B. Pretty v. UK case (ECHR 2002)


o ECHRs bi-methodological opinion became a source of law for all EU member
states, demonstrating convergence
Court found that UKs failure to excuse man who might help his wife commit
suicide didnt violate any principles of Euro Convention on Human Rights
What court really examines is whether UK courts violated Convention
by making assisted suicide a crime did it go beyond the national
margin of appreciation and done something excessive?
analyzed lower UK court proceedings and the cases relied on there,
distinguishing some precedents on their facts
o Two challenges represented in Pretty:
Changes in law that occur without anyone really acknowledging it
i.e. to keep up with medical and scientific technology
ambiguity regarding post-WWII sanctity of human life standard vs. modern
British standard of quality of life
Airdale v. Bland (HoL 1993) doctors can remove feeding tube if
consciousness has departed forever, emphasizing sanctity of life but
really looking to quality

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Comparative Legal Cultures of the Western World


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o Pretty cites Bland for normative principle that life is sacred


decontextualized reference to a precedent
o P claims that UK statute discriminated against the disabled b/c
she couldnt invoke her right to commit suicide b/c she was too
disabled
In France, common law portions of the opinion were omitted
excerpts from decision rather than entire decision published, legal analysis
afterward took a totally civilian approach
Resistance to common law portion wasnt willful, but a result of classifications
and categorizations that havent been altered so they can accept the new
French scholar balked at UK courts decision not to prosecute
In civilian countries, law must always be applied leeway comes by not
punishing someone
the very objective of law . . . lies in its symbolic expression rather than its
application in reality Antoine Garapon, French judge
Few people read European court decisions in their original form
lawyers read them after theyve been converted into legal code of national system or
in commentary that puts its own spin on decisions
National Supreme Courts are no longer supreme EU courts are above them
national legal cultures process and absorb European court decisions through the
filter of national legal categories, with cognitive grids of civil or common law creation
that do not assimilate information from the other system of legal thinking and
reasoning.
Stare decisis civilian countries have adopted it in a strange and different way
Rule of the case governs as precedent, but as a factually decontextualized,
normative principle (like a Code provision)
not fact-based at all, no inductive, analogical reasoning applied to cases that
follow
Italian Supreme Court decisions are recognized as law but theyre maxims,
meaning they apply equally to situations that are factually similar and those that
arent
Civilians who oppose this fear granting too much power to judges
Those in favor say judges are applying enacted law
European law is causing a move toward common law methods
Directives are specific and detailed, unlike code provisions
MS must change laws to incorporate them defies concept that law
emanates from a coherent whole
Increasing regulation and more detailed statutes defy civilian idea that laws should
be general, which helps them adapt and retain continuity
Montesquieus theory in The Spirit of the Laws: never separate the details
from the whole
Delmas-Marty cites many new norms developing spontaneously without
overarching set of rules as dangerous fragmentation

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Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

Slaughter says disaggregation is okay because it comes from democratic


process, just on a transnational level
Some Europeans relate profusion of statutes to Fascist governments
codification of everything and demise of the rule of law
Some propose an EU Civil Code to stem this fragmentation
o Viv thinks common law/civil law divide is central to understanding this debate
o French fear subordination of their Code to a piecemeal standard that s less
universal, fearing judicial empowerment
o Increase in highly specific laws also reminds many of fascism
o Ugo Mattei thinks a European Code will promote fairness

Metamorphosis is the best way of describing law and the nature of law although
this might be a typically common law perception

Chinese Law
Society characterized by skepticism regarding rule of law
Two camps: Legalists and Confucians
o Legalists external rules and positive laws should govern society, achieving
uniformity, predictability (rule of law)
Criticizes Confucian view for allowing individuals to corrupt system
o Confucians normative view of law; look to custom and peoples values,
moral standards of society to determine which rules govern (rule of people)
Takes into account social hierarchies and roles of Chinese traditions
Believe legalist view is incomplete, overly rigid and mechanical
Law must be tailored to needs of community
Looking to external rules is moral weakness, undermines
authority of those rules
Confucian view tends to prevail
o Legalist rulers tended to be harsh and corrupt in making and implementing
rules focused on criminal law and punishment
Crimes included political indiscretion, family impropriety
o Good example of role of legal formants and need to approach comparative
analysis by examining function and context
o IP law example: IP laws reflect rule of law, but theres much disclosure of
proprietary information resulting from gaps in bureaucracy (reflecting rule of
people)
Chinese view IP laws as open to abuse, as mechanical and penalizing
In the West, IP laws are based on exclusivity, individualism Chinese
collectivist society counterbalances, modifies this
Highest form of flattery is copying product as accurately as
possible

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Comparative Legal Cultures of the Western World


Fall 2006 Professor Curran

Because personal relationships & family ties are so important, formal


contracts with third parties arent so popular
o Contracts are often just pieces of paper rather than binding agreements
Modern legal system developed in 1970s, copied from Soviet Union
o Family law developed first b/c men wanted divorces; it was originally a crime
(w/ capital punishment) to abandon your parents; crime to fail to support
parents or younger siblings
o Criminal law throughout history, punishments were horrifying in order to
deter crime
Judges exercise lots of discretion, interpreting rule of law and Constitution as
consistent with common values
o Courts interpret wills according to peoples values youve given this person
too much money, this person needs more, was the heir dutiful and deserving
of inheritance?
o Judges are better now than they were in the 1980s, when they were very
corrupt and many were military - still corruption, still fairly political
Now there are special judges universities (as an alternative to law
school), and judges must pass the bar and have experience
Compensation for high-level judges is good now, so bribes arent
essential
o Three-person panels hear cases one judge and two listeners elected by
the people; judge writes opinion
There are lots of statutes, regulations and laws, and theyre theoretically accessible
o Lawyers provide access to laws, navigate through bureaucracy, help parties
negotiate system is unpredictable
Mediation and arbitration plays a much bigger role and is more formalized than here
judicial system seen as reserved for more high-profile political issues or issues
involving foreign investors
Law is an undergraduate degree, higher degrees available no law schools until the
1970s
o Because anyone can take bar exam, many lawyers havent studied law

44